David is a leader in the employee benefits industry. He holds leadership positions for the American Bar Association’s Employee Benefits Committee, the ESOP Association and the Ohio Employee Ownership Center. His practice focuses on assisting private and public companies and nonprofit organizations with all areas of employee benefits. This includes working with employers in design, implementation and compliance areas in connection with tax qualified plans, including 401(k) plans, ESOPs and defined benefit plans. His representation also extends to working with employers in arranging their nonqualified deferred compensation (e.g., 409A compliance), in addition to health and welfare arrangements and employee fringe benefits.
David has extensive experience in the area of employee stock ownership plans (ESOPs). His ESOP experience includes representing company sponsors of ESOPs and ESOP trustees and fiduciaries in acquisition transactions between the company, selling shareholders and the ESOP. In addition, he has worked with ESOP companies and ESOP trustees and fiduciaries in connection with acquisitions, divestitures and corporate organization once the ESOP owns company stock. Further, he assists both ESOP companies and lending institutions in connection with loans being made to ESOP companies so as to enable those companies to be able to meet their unique needs. Finally, David assists both ESOP companies and ESOP trustees and fiduciaries in connection with governmental investigations, participant claims processing, and governmental and plaintiff litigation.
In addition to his ESOP experience, David’s practice encompasses assisting employers with modifying and properly administering both small and large defined benefit and defined contribution plans, supplemental retirement programs, equity compensation programs, health and welfare arrangements and employee fringe benefits programs.
In doing such, David assists nonprofit employers in drafting and administering qualified and nonqualified plans, including 403(b), 457(b) and 457(f) plans. He assists professional employer organizations (PEOs) in offering employee benefit programs to their client organizations. David also has the unique experience of assisting larger employers (both public and private) in establishing benefit programs for newly established entities resulting from corporate reorganizations. In addition, he represents plan sponsors before the Department of Labor, Internal Revenue Service and the Pension Benefit Guaranty Corporation in connection with audits of employee benefit plans.
David also helps employers comply with the mandates of the Affordable Care Act, providing counsel on the design of eligibility modifications to ensure compliance with the terms of the “pay or play” mandate in a way that both protects the employer from penalties while ensuring the continued delivery of an employee benefit that serves the employer’s recruitment and retention goals.
- “DOL and IRS Issue New Employee Benefits Guidance,” Thompson Hine Employee Benefits Update, September 2020
- "Multiple Employer Qualified Plans,” Bloomberg Law, 2020
- “CARES Act: Implications for Businesses,” Thompson Hine COVID-19 Update, March 28, 2020
- “Federal CARES Act Provides Substantial Relief to Employers from Effects of COVID-19,” Thompson Hine COVID-19 Update, March 2020
- Quoted, “Retirement plan advisers could see increase in business under SECURE Act,” InvestmentNews, December 2019
- Quoted, “Secure Act Could Benefit Retirement Plan Advisors,” Barron’s, December 2019
- “Five Ways to Prepare to Sell to an ESOP,” Thompson Hine Business Law Update, Spring 2018
- Quoted, “PBGC Paid Out 5.6B in Main Pension Program Last Year,” Law360, March 8, 2018
- “ESOPs – An Exit Strategy for Baby Boomers and More,” Thompson Hine Business Law Update, Spring 2017
David regularly makes presentations on employee benefits matters. His presentations are generally intended for human resources professionals and cover emerging topics of interest in the employee benefits community, including the implementation of consumer driven health care programs and compliance with new statutory mandates for supplemental retirement programs and the Affordable Care Act.
- "Benefits Building Blocks for the Biden Administration," Thompson Hine Webinar, February 2, 2021
- “Protecting Yourself from Legal Problems: Audits, Lawsuits, & Insurance Issues,” The ESOP Symposium: Ownership Solutions for Established ESOPs, National Center for Employee Ownership, September 2016
- Panelist, “Latest Developments That Are Changing The Landscape for Employee Benefits,” 17th Annual Estate & Tax Planning Professional Seminar, Atrium Medical Center Foundation, November 2015
- Co-Presenter, “Legal Update: ESOP Litigation & DOL Audits,” Great Lakes Regional ESOP Conference, Indiana, Michigan & Ohio/Kentucky Chapters of the ESOP Association, October 2015
- Co-Presenter, “Developing & Updating Your ESOP Administration Timeline,” Annual Spring ESOP Conference, Ohio/Kentucky Chapter of the ESOP Association, March 2015
- Co-Presenter, “Process & Decision Making of Your ESOP Administration Committee,” Las Vegas Conference, ESOP Association, November 2014
- “Affordable Care Act Primer for DR Practitioners,” Domestic Relations Institute, Cincinnati Bar Association Domestic Relations Court Committee, April 2014
- Panelist, “Heath Care: Code, Coverage, Compliance,” 27th Annual Ohio Employee Ownership Conference, Ohio Employee Ownership Center, 2013
- “The ABCs of Employee Stock Ownership Plans,” Southwest Ohio ESOP Forum, Ohio Employee Ownership Center, June 2010
- Selected for inclusion in The Best Lawyers in America© 2021, 2022 in the field of Employee Benefits (ERISA) Law
- Selected as an Acritas Star, a “client-nominated, stand-out lawyer”
- Selected for inclusion in Ohio Super Lawyers® as a Rising Star, 2018
- Selected for inclusion in Chambers USA®: America's Leading Lawyers for Business, Employee Benefits & Executive Compensation, Ohio, 2017-2021: “David Whaley is praised by clients as ‘extremely knowledgeable and very efficient.’”
- Listed in Legal 500, 2018, 2020 and 2021
- Ranked as “Up and Coming” in Chambers USA: America's Leading Lawyers for Business, Employee Benefits & Executive Compensation (Ohio), 2013
- American Bar Association, Employee Benefits Committee Section of Taxation, ESOP Subcommittee, chair
- Cincinnati Bar Association, Employee Benefits Committee, past chair
- ESOP Association, Legislative & Regulatory Committee
- National Center for Employee Ownership
- Ohio Employee Ownership Center
- Ohio State Bar Association
- University of Dayton Alumni Association
Retirement plan advisers could see increase in business under SECURE Act - Provision would make it easier for small businesses to form collective 401(k) offerings
December 26, 2019